Citation Nr: 1127945	
Decision Date: 07/27/11    Archive Date: 08/02/11

DOCKET NO.  06-14 037	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Whether new and material evidence has been presented to reopen the claim of service connection for heart disease.

2. Entitlement to service connection for a heart disease. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel




INTRODUCTION

The Veteran, who is the appellant, served on active duty from November 1979 to June 1980 and from September 1981 to June 1998.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2005 of a Department of Veterans Affairs (VA) Regional Office (RO).

In April 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the Veteran's file.

The reopened claim of service connection for heart disease is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. In an unappealed rating decision in July 2002, the RO denied service connection for heart disease.

2. The additional evidence submitted since the rating decision by the RO in July 2002 relates to an unestablished element of the claim and raises a reasonable possibility of substantiating the claim of service connection for heart disease. 


CONCLUSIONS OF LAW

1. The rating decision by the RO in July 2002, denying service connection for heart disease became final.  38 U.S.C.A. § 7105(c) (West 2002). 



2. The additional evidence submitted since the rating decision by the RO in July 2002 is new and material and the claim of service connection for heart disease is reopened.  38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156 (2010). 

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  

As the claim of service connection is reopened, the only question decided, the Board need not further address VCAA compliance. 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material Evidence Legal Standard

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered.  38 U.S.C.A. § 7105.  However, a claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C.A. § 5108.

"New and material evidence" is defined in 38 C.F.R. § 3.156(a).  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.


When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

Evidence Previously Considered

At the time of the July 2002 rating decision, the evidence consisted of the Veteran's service treatment records and a June 2002 VA examination.  The service treatment records showed that the Veteran was treated for incidents of chest pain in 1997 and 1998, and he underwent a cardiac stress test in 1998, for which the results were normal with the exception of an irregular heartbeat.  The June 2002 VA examination concluded that there was no current disability attributable to service and that the Veteran's symptoms were more likely due to tension or a musculoskeletal problem.

Evidence Newly Submitted

Evidence received since the July 2002 rating decision includes VA treatment records for the period of July 2002 through September 2009, the Veteran's written statements, and his testimony at hearing in April 2011.

VA treatment records show that the Veteran was diagnosed with cardiomyopathy with left ventricular regurgitation in 2005 after being treated on numerous occasions for chest pain beginning in 2000.  Other diagnosed heart problems including mitral valve disease and possible early congestive heart failure.  VA treatment records also show that the Veteran had scarring and dermatofibromas from insect bites incurred in Saudi Arabia during Desert Storm. 

The Veteran's written statements describe a collapse in service in December 1997 followed by medical testing showing an irregular heartbeat, as well as his later heart problems after service and the diagnosis of cardiomyopathy in 2005.  He noted that during his duties as a missile crewmember he may have been exposed to ionizing radiation, which could be the cause of his heart condition.  



In addition, the Veteran cited the relationship that can exist between some viral infections and cardiomyopathy and noted that he had been treated for viruses in service, including strep throat, as well as for fevers, headaches, body cramps, and gastrointestinal problems.  Along with the written statements, the Veteran has submitted articles discussing the causes of cardiomyopathy, which include viral infections and a prior myocardial infarction.  The Veteran stated that he was a long distance runner from the age of 14 until after his separation from service, which he felt demonstrated that his heart condition was not one of long-standing, and may have led to a false negative on the treadmill stress test.  He also stated that he believed a stress test was not sufficient for diagnosing the type of heart condition he has.

Finally, the Veteran's testified that he experienced chest pains in service and was diagnosed with an irregular heartbeat.  He stated that he lost consciousness more than once during physical training.  He testified to experiencing a viral infection in service while in Desert Storm.  He stated that he was first treated for heart problems in 2000 at American Lake VA Medical Center in Tacoma after mentioning his symptoms while being seen for migraines.  He reported receiving treatment for heart problems in service while stationed in Germany and having to quit his truck-driving job after the service because he was taking heart medication.  He reported a nuclear heart examination in Seattle during the diagnostic phase where one of the doctors said the viral infection he experienced during Desert Storm was the likely cause of his current heart problems, including as a possible result of insect bites.
  
Analysis

The July 2002 rating decision denied service connection for a heart condition because there was no evidence of a heart condition which was incurred in or aggravated by his military service.  



Therefore, to support reopening of the claim, the evidence would need to demonstrate the existence of heart condition and show that the condition could be related to an incident, injury, or disease in service in order to be considered new and material.

Since a heart condition, namely cardiomyopathy, has been diagnosed since the July 2002 rating decision, there is evidence of a current disability.  This evidence is new and is not cumulative of evidence previously of record and pertains to a previously unestablished fact.  

In addition, the Veteran has testified that his medical providers told him of a link between his symptoms in service and his current condition, as well as the possibility of a viral infection contracted during Desert Storm as the cause of his cardiomyopathy.  For purposes of adjudicating a claim to reopen, the Veteran's statements are presumed credible.  Justus v. Principi, 3 Vet. App. 510 (1992).  Also, as set forth in case law, he is competent to provide evidence regarding what he has been told about his medical condition.  See, e.g., Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The evidence in the Veteran's statements and testimony is not cumulative of evidence previously considered and relates to an unestablished element of the claim, which qualifies as new and material evidence and the claim is reopened.  38 C.F.R. § 3.156.


ORDER

As new and material evidence has been presented, the claim of service connection for heart disease is reopened and, to this extent only, the appeal is granted.







REMAND

While new and material evidence has been submitted, there is still insufficient evidence to allow the Board to make a decision on the merits.  Further development under the duty to assist to include a VA examination and medical opinion are needed. 

The Veteran testified his heart problems were first seen in 1986 when he was stationed in Germany and that he was treated in German hospital. 

The service treatment records show that the Veteran was seen in service for complaints of chest pain and had a normal stress test with no evidence of ischemia, but he did have an abnormal heart rate.  In addition, the Veteran was treated on several occasions for viral infections, including strep throat, and was exposed to German measles.  He also sustained insect bites.  All of the incidents are cited by the Veteran in his claim of service connection as possible causes of his current heart disease.

In addition, the Veteran testified he was recently granted Social Security disability benefits based, at least in part, on his heart condition.  VA has a duty to obtain any relevant records held by a federal agency to include records of the Social Security Administration.

Accordingly, the case is REMANDED for the following action:

1. Ask the Veteran either to submit or to authorize VA to obtain on his behalf the records of treatment in a hospital in Germany in 1986. 






2.  Obtain records of the Social Security Administration.  If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e).

3.  Afford the Veteran a VA examination by a cardiologist to determine whether it is more likely than not (greater than 50 percent probability), at least as likely as not (approximately 50 percent probability), or less likely than not (less than 50 percent probability) that the Veteran's current heart disease, namely, coronary disease with angina and dilated cardiomyopathy with mitral insufficiency, had onset during service.  

The VA examiner is asked to comment on the significance of the Veteran's episodes of chest pain in service in 1997 and in 1998, of the exercise stress test showing no ischemic findings on EKG, of the normal chest X-ray in March 1998.  The examiner is also asked to comment on the effect, if any, of the history of viral infections and insect bites as possible etiologies of the Veteran's heart disease.

If however after a review of the record, an opinion on causation is not possible without resorting to speculation, the examiner is asked to clarify whether actual causation cannot be determined because there are several potential etiologies, please identify the other potential etiologies in the record, 






when the signs and symptoms in service are not more likely than any other etiology to cause the Veteran's current heart disease and that an opinion on causation is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. 

The Veteran's file must be made available to the VA examiner for review.

4. On completion of the foregoing, the claim should be adjudicated.  If the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board. 

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs